Is the look and feel of the Tetris video game distinguishable from the ideas of the game and therefore protectable? In Tetris Holding, LLC v. XIO Interactive, Inc., No. 09-6115 (D.N.J. May 30, 2012), the United States District Court for the District of New Jersey answered this question in the affirmative.
In that case, Plaintiff, Tetris Holdings, LLC sued XIO Interactive, Inc. (“Defendant”) for the Defendant’s marketing of the game called “Mino.” Plaintiff alleged among other things, copyright infringement and trade dress infringement because the game copied many copyrightable aspects of its Tetris game. Tetris identified the following fourteen (14) elements that were allegedly copied:
- Seven Tetrimino playing pieces made up of four equally-sized square joined at their sides;
- The visual delineation of individual blocks that comprise each Tetrimino piece and the display of their borders;
- The bright, distinct colors used for each of the Tetrimino pieces;
- A tall, rectangular playfield (or matrix), 10 blocks wide and 20 blocks tall;
- The appearance of Tetriminos moving from the top of the playfield to its bottom;
- The way the Tetrimino pieces appear to move and rotate in the playfield;
- The small display near the playfield that shows the next playing piece to appear in the playfield;
- The particular starting orientation of the Tetriminos, both at the top of the screen and as shown in the “next piece” display;
- The display of a “shadow” piece beneath the Tetriminos as they fall;
- The color change when the Tetriminos enter lock-down mode;
- When a horizontal line fills across the playfield with blocks, the line disappears, and the remaining pieces appear to consolidate downward;
- The appearance of individual blocks automatically filling in the playfield from the bottom to the top when the game is over;
- The display of “garbage lines” with at least one missing block in random order; and
- The screen layout in multiplayer versions with the player’s matrix appearing most prominently on the screen and the opponents’ matrixes appearing smaller than the player’s matrix and to the
side of the player’s matrix.
Id. at 5.
Defendant conceded that it blatantly copied the look and feel of Tetris so that it could make a similar game for the iPhone. However, Defendant alleged that it was careful not to copy protectable aspects of the game. Instead, it copied unprotectable elements such as the “rules, function, and expression essential to the game play.” Id. at 7. Defendant argued that “not only are the ideas of Tetris (or the rules of the game) not protectable, but neither re the ‘functional aspects’ of the game or expressive elements relating to the game’s function or play.” Id. at 17. However, the Court disagreed and stated that Defendant “cannot protect expression inseparable from either game rules or game function.” Id.
In its holding, the Court noted that the Plaintiff was conflating the doctrine of merger and the related doctrine known as “scenes à faire.” The Court explained that merger exists when an idea and the expression of that idea become inseparable. Id. at 14. In that situation, copying is allowed to prevent a copyright holder from obtaining a monopoly over that idea. The Court went on to discuss how expressions that are so associated with a particular idea (scenes à faire) are also unprotectable by copyright law. Id. at 15. In Tetris, the Court felt that neither doctrine applied.
Evaluating screenshots of both games side by side revealed just how similar the two games appeared.
The Court stated:
Without being told which is which, a common user could not decipher between the two games. Any differences between the two are slight and insignificant. If one has to find
distinctions only at a granular level, then the works are likely to be substantially similar.
Reviewing the videos of the game play bolsters this conclusion as it is apparent that the overall look and feel of the two games is identical. There is such similarity between the visual expression of Tetris and Mino that it is akin to literal copying.
Id. at 26-27.
Ultimately, the Court granted summary judgment for Tetris Holding, LLC, as to the copyright infringement and trade dress infringement claims.